Here is a guest post from Sam Issacharoff:
- Since Rick brought my comment in the Times into the debate, let me take the opportunity to address some of the issues behind the Chief Justice’s statesmanship. To my mind, there are three issues that stand out in the debate over Section 5. The first is a legal one, the second is one about the legislative process, and the third is one about the field of voting rights.
First, the VRA extension had two great sources of constitutional vulnerability: how jurisdictions came to be covered and how their covered status could end. The brute fact is that most covered jurisdictions are defined by events that happened in 1964, before a large part of their eligible voters and, especially, most of their citizens were alive. That is compounded by the difficulties in place in getting out from coverage if the 1964 conditions no longer obtain. This is why Rick Hasen and others (including me) urged Congress to change the bailout provision in the 2006 amendments — to no avail.
Judge Tatel below handled this issue as if it were squarely justified by South Carolina v. Katzenbach and the legislative history of the Act. The critical actors in the months that follow should not forget that the Court unanimously reversed the lower court. As many have noted: a clear warning.
What Chief Justice Roberts offered was the form of a potential legislative fix. If bailout were simple and routine, then a great deal of constitutional pressure would be taken off of both the formula for inclusion and the problematic timeless quality that the Act now has. It does not avoid all the constitutional issues in continued coverage, as Justice Thomas argued, but for 8 members of the Court it calms the waters. Finding this compromise without reaching in first instance for the constitutional hammer was, in my mind, an act of judicial stewardship.
This goes to the second point. Statesmanship is generally associated with the political branches, not the judiciary. In light of the Court’s opinion, it is noteworthy that serious issues about legislative reform for the 21st century were never part of the congressional dialogue. The Act became an untouchable icon, and the votes were either with us or against us. I do not wish to belabor the point here, but I believe it ill serves the processes of democracy for legislative initiatives to come from the Court and not from robust congressional debate.
Finally, that raises a third point about the Act. Here I have little to add to what Guy Charles has been arguing both before and since the Court’s opinion, and what Bruce Cain and Dan Tokaji noted as well. Increasingly in my view, Section 5 has more misses than hits in addressing the real sources of voting problems in this country. I may be more attuned to some of the costs of some of these collateral consequences, but leave those aside. The simple fact is that if one were drafting a statute from scratch to address the significant voting issues in the U.S. today, it is hard to imagine how it would take the form of Section 5. Certainly Section 5 may still have important value for some of the issues it handles. It is hard to see how it addresses the core issues of the day.